Citation Nr: 0412891
Decision Date: 05/18/04 Archive Date: 05/25/04
DOCKET NO. 99-08 398 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nancy S. Kettelle, Counsel
INTRODUCTION
The veteran had active military service from December 1965 to
October 1967.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from a February 1999 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio. In October 2000, the veteran testified at a
videoconference hearing before the undersigned. The Board
remanded the case to the RO for additional development in
November 2000, and it is now before the Board for further
appellate consideration.
FINDINGS OF FACT
1. All evidence necessary to decide the appeal has been
obtained; the RO has notified the veteran of the evidence
needed to substantiate his claim and notified him of what
evidence he should provide and what evidence VA would obtain;
and the veteran has stated he has no additional evidence to
support his claim.
2. The veteran is not a veteran of combat.
3. Although the veteran has been diagnosed as having PTSD,
his claimed in-service stressors have not been verified.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002);
38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act
The Board has considered the provisions of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (VCAA) (codified as amended at 38 U.S.C.A.
§§ 5103, 5103A (West 2002)). This law eliminated the former
statutory requirement that claims be well grounded. Cf. 38
U.S.C.A. § 5107(a) (West 1991). The VCAA includes an
enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA also redefines the
obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. In
August 2001, VA issued regulations to implement the
provisions of the VCAA, which are now codified at 38 C.F.R.
§ 3.159 (2003).
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
In this case, in a letter dated in October 1998, the RO
notified the veteran that it was necessary to establish that
he had a stressor in order to accept that he had PTSD related
to service. The RO described various types of stressors and
explained that if a stressor were not found, a PTSD diagnosis
could not be accepted. The RO requested that the veteran
provide a statement of his claimed stressors and advised him
to be as detailed and specific as possible as to what
happened, where and when. The rating decision, statement of
the case, and supplemental statements of the case apprised
the veteran of the information and evidence needed to
substantiate the claim, the law applicable in adjudicating
the appeal, and the reasons and bases for VA's decision.
Furthermore, these documents outline the specific evidence
that was considered when the determination was made.
In a May 1999 letter, the RO informed the veteran of the
evidence required to establish service connection for PTSD,
including what information was required to verify a stressor
if he did not engage in combat against the enemy. In
addition, in a January 2001 letter, the RO specifically
requested that the veteran identify and provide release
authorizations for health care providers who might possess
records pertinent to his claim. The RO also requested that
the veteran provide copies of any service personnel records
in his possession and told him to provide additional
information about his claimed in-service stressors. The RO
told the veteran to specify the units of the servicemen whose
deaths he had claimed as stressors. Further, in a letter to
the veteran dated in March 2003, a VA special processing unit
outlined the evidence still needed from him, which included
copies of any service personnel records in his possession and
additional information about his claimed stressors. The
processing unit also told the veteran that he could identify
or submit any additional evidence that might corroborate the
occurrence oh his claimed stressors and the presence of PTSD
due to those stressors. The processing unit advised the
veteran that this could include any medical records or
statements from fellow servicemen or family members who had
contemporaneous knowledge of the claimed stressors.
In a November 2003 letter to the veteran, the special
processing unit notified the veteran that it still needed the
same information from him, outlined the evidence that had
been obtained and told the veteran that VA was responsible
for getting relevant records from any Federal agency and
would try on his behalf to obtain relevant records not held
by a Federal agency provided the provided sufficient
identifying information. The processing unit made clear to
the veteran that it was ultimately his responsibility to make
sure VA received all requested records that were not in the
possession of a Federal department or agency.
The Board finds that the correspondence outlined above
satisfied VA's duty to notify the veteran of the information
and evidence necessary to substantiate his claim as required
by Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The Board notes that in January 2004 the United States Court
of Appeals for Veteran Claims (Court), in Pelegrini v.
Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA
notice, as required by 38 U.S.C. § 5103(a), must be provided
to a claimant before the initial unfavorable RO decision on a
claim for VA benefits. The Court's decision in Pelegrini
also held, in part, that a VCAA notice consistent with 38
U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform
the claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." This
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
In this case, the veteran has been well-informed of the
evidence needed to substantiate his claim and has been told
what evidence he should submit and what evidence VA would
obtain, and although he has not been explicitly told to
"give us everything you've got pertaining to your claim,"
the RO did in its March 2003 letter tell the veteran that he
could identify or submit any additional evidence he had that
might corroborate the occurrence of his claimed stressors and
the presence of PTSD due to those stressors. That notice is,
in the judgment of the Board, tantamount to advising the
veteran to submit everything he has pertaining to his claim.
The Board acknowledges that the timing of the notice provided
by VA has not complied with the requirements of Pelegrini in
that the veteran's claim was received in September 1998, and
the RO initially denied the claim in February 1999, which was
before the veteran was sent the letters telling him what
evidence he should submit and what evidence VA would obtain.
While the Court in Pelegrini did not address whether, and, if
so, how, the Secretary can properly cure a defect in the
timing of the notice, it did leave open the possibility that
a notice error of this kind may be non-prejudicial to a
claimant.
To find otherwise would require the Board to remand every
case for the purpose of having the agency of original
jurisdiction (AOJ) provide a pre-initial adjudication notice.
The only way the AOJ could provide such a notice, however,
would be to vacate all prior adjudications, as well as to
nullify the notice of disagreement and substantive appeal
that were filed by the appellant to perfect the appeal to the
Board. This would not be a reasonable construction of
section 5103(a). There is no basis for concluding that
harmful error occurs simply because a claimant receives VCAA
notice after an initial adverse adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire adjudication process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court, otherwise it would not have taken "due account
of the rule of prejudicial error" in reviewing the Board's
decision. See 38 U.S.C. § 7261(b)(2); see also Conway v.
Principi, 353 F.3d 1369, 1374-75 (Fed. Cir. 2004) (there is
no implicit exemption for notice requirements contained in 38
U.S.C. § 5103(a) from general statutory command set forth in
section 7261(b)(2) that Veterans Claims Court shall "take due
account of the rule of prejudicial error").
In reviewing the AOJ determination on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate decision
and becomes the single and sole decision of the Secretary in
the matter under consideration. See 38 C.F.R. § 20.1104.
There simply is no "adverse determination," as discussed by
the Court in Pelegrini, for the veteran to overcome.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38
C.F.R. § 20.1102 (harmless error).
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
While the notice provided to the veteran on in November 2003
was not given prior to the first AOJ adjudication of the
claim, the notice was provided by the AOJ prior to the
transfer and certification of his case to the Board, and the
content of the notice fully complied with the requirements of
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the
notice was provided, the case was readjudicated and an
additional supplemental statement of the case was provided to
the veteran in December 2003. The veteran has been provided
with every opportunity to submit evidence and argument in
support of his claim, and to respond to VA notices.
Therefore, not withstanding Pelegrini, to decide the appeal
would not be prejudicial error to him.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim.
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim for service connection for PTSD. His
service medical records are in the file, and the RO has made
repeated attempts to obtain the veteran's service personnel
records. In this regard, the RO contacted the National
Personnel Records Center (NPRC) on multiple occasions from
1998 to 2003, and the NPRC finally stated in March 2003 that
an extensive and thorough search has failed to locate the
veteran's personnel file and concluded that the records
either do not exist, that NPRC does not have them or that
further efforts to locate them at NPRC would be futile.
Following an RO request for a search of morning reports for
the veteran's unit, the NPRC did report in May 2003 that
morning reports of the 610th transportation company from June
1967 to October 1967 included no remarks regarding anyone
wounded in action or killed in action. In addition, the RO
requested assistance from the United States Armed Services
Center for Unit Records Research (USASCURR) in an effort to
verify the veteran's claimed stressor and a response were
received from that organization. The RO has obtained the
veteran's VA treatment records and obtained a letter and
records from a private psychologist identified by the
veteran. There is no indication that there exists any
available evidence which has a bearing on the issue
adjudicated here that has not been obtained. The veteran has
been accorded ample opportunity to present evidence and
argument in support of this appeal, and he has stated that he
has no additional evidence to support his claim.
The Board notes that in an informal brief submitted to the
Board in April 2004, the veteran's representative argued that
the case should be returned to the RO because the RO did not
provide the claims folder to the local representative for
review and argument prior to sending the case to the Board.
In addition, in April 2004, the representative argued that
the case should be remanded to the RO for a VA psychiatric
examination that the representative states was mandated in
the Board's November 2000 remand.
There is no merit to either of the representative's
arguments. As to the first, while there is no indication
that the RO made a specific request that the local
representative provide argument immediately prior to its
return of the case to the Board in March 2004, the record
shows that the representative was provided an opportunity to
present a response to the December 2003 supplemental
statement of the case, which it did not do in the sixty days
allowed. Further, in the forwarding letter for the
supplemental statement of the case, the RO provided clear
notice that if no additional information was received from
the veteran within 60 days, it would return the case to the
Board.
As to the matter of a remand for a VA psychiatric
examination, the November 2000 Board remand was clear that
the requirement for a VA examination was conditional on the
verification of any of the veteran's claimed stressors. As
will be discussed below, the claimed stressors have not been
verified. Under the circumstances, a psychiatric examination
could do nothing to substantiate the veteran's claim because
without credible supporting evidence that a claimed in-
service stressor actually occurred in this case, a claim for
service connection for PTSD may not be granted.
Based on the foregoing, the Board concludes that the veteran
has received adequate notice. Further, to the extent
possible, relevant data had been obtained for determining the
merits of the veteran's claim, and the record as a whole
demonstrates that VA has taken reasonable efforts to assist
the veteran in obtaining evidence necessary to substantiate
the claim. The duty to assist is not invoked, even under
Charles v. Principi, 16 Vet. App. 370 (2002), where "no
reasonable possibility exists that such assistance would aid
in substantiating the claim." 38 U.S.C.A. § 5103A.
Laws and regulations
Service connection
In general, service connection will be granted for disability
resulting from injury or disease incurred in or aggravated by
active military service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303. Service connection may be granted for any disease
diagnosed after discharge when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. See 38 U.S.C.A. § 1113(b) (West 2002);
38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503,
505 (1992).
Establishing service connection for PTSD requires: (1)
Medical evidence diagnosing PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a link between current
symptoms and the claimed in-service stressor. 38 C.F.R.
§ 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to that
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R.
§ 3.304(d), (f).
If the claimant did not engage in combat with the enemy, or
the claimed stressors are not related to combat, then the
claimant's testimony alone is not sufficient to establish the
occurrence of the claimed stressors, and his testimony must
be corroborated by credible supporting evidence. Cohen v.
Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App.
389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West
v. Brown, 7 Vet. App. 70, 76 (1994). Furthermore, service
department records must support, and not contradict, the
claimant's testimony regarding non-combat stressors. Doran
v. Brown, 6 Vet. App. 283 (1994).
The question of whether the veteran was exposed to a stressor
in service is a factual one, and VA adjudicators are not
bound to accept uncorroborated accounts of stressors or
medical opinions based upon such accounts. Wood v.
Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration,
1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614
(1992). Hence, whether the evidence establishes the
occurrence of stressors is a question of fact for
adjudicators, and whether any stressors that occurred were of
sufficient gravity to cause or to support a diagnosis of PTSD
is a question of fact for medical professionals.
Standard of review
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13
Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 3.102. The United States Court of
Appeals for the Federal Circuit has held that "when the
positive and negative evidence relating to a veteran's claim
are in 'approximate balance,' thereby creating a 'reasonable
doubt' as to the merits of his or her claim, the veteran must
prevail." Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir.
2001). If the Board determines that the preponderance of the
evidence is against the claim, it has necessarily found that
the evidence is not in approximate balance, and the benefit
of the doubt rule is not applicable. Ortiz, 274 F.3d at
1365.
Background and analysis
The veteran contends that he has PTSD related to his service
in Vietnam. He states that he was in Vietnam from
approximately July through September 1967 and was a driver in
the 610th Transportation Company attached to the 101st
Airborne Division. He has said that he experienced numerous
incidents of sniper, mortar and rocket attacks and that he
witnessed the deaths of three fellow servicemen. In a
stressor statement received at the RO in January 1999 the
veteran said that a fellow serviceman named Parker was killed
by sniper fire while he was filling sandbags. The veteran
said this was perhaps near La Trang. The veteran also said
that in September 1967 a fellow serviceman named Wilcox was
killed in action returning small arms fire during a mopping
up operation. In addition, the veteran said that at An Khe
in fall 1967 a fellow serviceman named Johnson was killed
when he ran into VC while on a sweep of their perimeter. He
stated that he did not remember the first names of those men.
At that time he identified them as being in the 610th
Transportation Company.
At the October 2000 hearing, the veteran testified that his
military occupational specialty was supply handler but that
his duties in Vietnam included driving a truck and sometimes
going out in the bush on small sweep maneuvers. He testified
that while he was in Vietnam he drove trucks in convoys to
deploy the troops to various areas and snipers shot at them.
He said that sometimes they took heavy fire and sometimes
there were just 1 or 2 snipers. He testified that they
sometimes had to dodge road mines, and although trucks were
damaged badly, no individual was hurt seriously. He
testified that he did have times when he lost some
individuals who were close tom him. He testified the when he
was driving Parker, a friend of his, Parker was shot and he,
the veteran, did not realize Parker was shot until about 5
minutes later.
The veteran testified that on one occasion when they were out
to deploy troops and drop them off, they came upon a group of
bodies. The veteran testified that a lieutenant who was with
them stopped the convoy, got out and started looking for
souvenirs. The veteran testified that the convoy started
getting small arms fire and then mortar fire. He testified
that the lieutenant was killed and many others were injured
although none of the troops in the veteran's truck were hurt.
The veteran testified that he dropped out of his truck but
was unable to fire and started running. He testified that he
thought that might be the only thing that saved his life.
In addition, the veteran testified that a friend of his named
Prince Parker, who was from his hometown in Pennsylvania, was
killed on a convoy in approximately October. The veteran did
not volunteer the year, but agreed that it was 1966.
In correspondence subsequent to the hearing, the RO requested
that the veteran reiterate his claimed in-service stressors
and the dates and places where they occurred. The RO also
specified that if those stressors included the deaths of
Parker, Johnson and Wilcox, the veteran should identify their
units or affirm that they were in the 610th Transportation
Company. The veteran later responded that the servicemen who
were killed in action were being transported and were not
anyone in his own assigned unit.
The medical evidence of record includes many VA hospital
summaries and progress notes showing the veteran has received
VA psychiatric care over many years. Some of those records
mention PTSD, but none associates such an assessment with any
particular stressor. The record also includes a September
2001 letter from a private clinical psychologist, Walter P.
Knake, Jr., Ph.D. Dr. Knake stated that he believes the
veteran has long-standing PTSD, described the veteran's
symptoms and stated that with much emotion and tears the
veteran had described to him various frightening episodes of
combat in Vietnam whereby his life was at stake and whereby
his friends lost their lives.
In view of the diagnosis of PTSD with the stressors described
as episodes of combat in which the veteran's life was at
stake and friends lost their lives, it is necessary to
determine whether the veteran was in combat and whether there
was otherwise loss of life of the friends identified by the
veteran. The VA General Counsel has defined the ordinary
meaning of the phrase "engaged in combat with the enemy" to
mean that the veteran must have personally participated in a
fight or encounter with a military foe or hostile unit or
instrumentality. VAOPGCPREC 12-99 (1999).
The veteran's DD 214 shows that his military specialty was
supply handler, that his last duty assignment was the 610th
Transportation Company and that he received the National
Defense Service Medical and the Vietnam Service Medal. In
addition, the DD 214 shows that veteran's foreign service
totaled 3 months and 6 days, which is consistent with the
veteran's statements that he was in Vietnam from July to
September 1967. The veteran is not shown, nor does he claim,
to have received any medal, commendation or decoration
indicative of participation in combat.
As was described earlier, multiple attempts to obtain the
veteran's service personnel records have been unsuccessful.
The RO has attempted to verify the stressors alleged by the
veteran. In this regard, the NPRC has searched morning
reports of the 610th Transpiration Company from June 1, 1967
to October 1, 1967, and reports they include no remarks
regarding any servicemen wounded in action or killed in
action, which weighs against a finding that the veteran
served in combat. In addition, USASCRUR has reported that it
reviewed July 1 to October 6, 1967, morning reports for the
610th Transportation Company and confirmed that they do not
list a Parker, Wilcox or Johnson as being killed, wounded or
injured during the stated period.
The USASCRUR has reported that it reviewed Operational
Reports-Lessons Learned (OR-LLs) for the period May 1 to
October 31, 1967, submitted by the 14th Transportation
Battalion, the higher headquarters of the 610th
Transportation Company. The USARCURUR states that the report
revealed that the veteran's unit was located at An Khe during
the entire reporting period. The USASCRUR further reported
that an OR-LL report submitted by the 1st Logistical Command
revealed that on October 8, 1967, the An Khe Sub-Area Command
at An Khe received 10-15 rounds of small arms fire, followed
by a ground attack by approximately 15 enemy. The enemy
penetrated the perimeter through two holes in the fence and
placed about 40 charges of TNT throughout the area. During
the 15-minute attack, two were killed (one U.S. and one
Vietnamese civilian) and two were wounded (one U.S. and one
civilian). Guards on duty at the compound returned small
arms fire, killing three enemy. The USASCRUR stated that in
order to conduct further research, the veteran must provide
additional information including specific incidents of
sniper/mortar/rocket attacks, locations, full names of
casualties and approximate dates within a 60-day time period.
If it were shown that the veteran was with his unit at the
time of the above-described attack, it might be found that he
was in combat or at least that there could be verification of
a claimed stressor having to do with sniper, rocket and
mortar attacks. See Pentecost v. Principi, 16 Vet. App. 124,
128 (2002); Suozzi v. Brown, 10. Vet. App. 307, 310-11 (1997)
(corroboration of every detail of claimed stressor, including
personal participation, is not required; independent evidence
that incident occurred is sufficient). In this case,
however, the preponderance of the evidence is against finding
that the veteran was with his unit, the 610th Transpiration
Company at the time of the attack on An Khe on October 8,
1967. This is because review of the veteran's service
medical records shows that as of October 5, 1967, he was
undergoing examination for separation from service by the
575th Medical Detachment at the 8th Field Hospital and that he
was found qualified for separation pending results of an
orthopedic consultation, which is shown to have involved an
X-ray taken at that facility on October 10, 1967. The next
entry in the veteran's service medical records shows that he
underwent a further separation examination at Fort Lewis,
Washington, on October 12, 1967. Based on this information,
the Board concludes that the veteran was not present at An
Khe when the attack occurred on October 8, 1967.
Based on the foregoing, that is the lack of awards indicative
of combat service and absence of any notation of servicemen
of the veteran's unit wounded in action or killed in action
in morning reports, and evidence preponderating against a
finding that the veteran was present at the one documented
attack on the location of the veteran's unit at An Khe, the
Board finds that the preponderance of the evidence is against
a finding that the veteran engaged in combat with the enemy
during his service in Vietnam.
As to the veteran's claimed stressors of the deaths of fellow
servicemen who he now says were not in his unit, but rather
were among troops being transported by his unit, there is a
complete lack of credible supporting evidence that the
claimed stressful events actually occurred. In this regard,
the veteran has not identified their units, and the morning
reports for the 610th Transportation Company do not identify
them. Further, the RO obtained a listing of the directory of
names from the Vietnam Veterans Memorial. The listing does
not include a "Prince" Parker. It lists a Parker killed in
July 1967 from South Carolina and a Parker killed in August
1967 from Georgia, but lists no Parker from the veteran's
hometown or even from Pennsylvania who was killed in the
period from July through October 1967. Further, the listing
includes no serviceman with the surname Wilcox who was killed
while the veteran was in Vietnam. The record includes no
information concerning servicemen named Johnson other than a
profile showing a serviceman with that surname was killed at
Dinh Tuong, Vietnam, in May 1967, which was prior to the
veteran's claimed arrival in Vietnam in July 1967. The
veteran has neither submitted nor identified evidence that
would facilitate additional action to confirm his claimed
stressors.
The Board acknowledges that the Court has held that a clamed
stressor need not be confirmed in every detail. See Souzzi
v. Brown, 10 Vet. App. 307, 331 (1997). The supporting
evidence need only imply that the veteran was personally
exposed to the stressor. See Pentecost v. Principi, 16 Vet.
App. 124 (2002). Notwithstanding the Court holdings, there
is in this case simply no evidence that the veteran was
exposed to a stressor except for his entirely unsupported
statements, and the veteran's statements alone are
insufficient to establish its occurrence. See Doran, Suozzi,
and Pentecost, supra.
In summary, the record includes evidence of a diagnosis of
PTSD from Dr. Knake. The diagnosis was based on the
veteran's recitation of stressors claimed to have been
related experiences in combat. The evidence, does not,
however, show that the veteran participated in combat, nor
have his claimed stressors been corroborated by credible
supporting evidence. Without a diagnosis of PTSD based on a
verified stressor, service connection for that disorder may
not be granted. See 38 C.F.R. § 3.304(f); Cohen, supra.
Hence, the Board finds that the preponderance of the evidence
is against the claim, and service connection for PTSD must be
denied.
ORDER
Entitlement to service connection for PTSD is denied.
____________________________________________
Robert E. Sullivan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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